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New York to fight ‘libel tourism’

Proposed legislation in the New York State legislature would prevent individuals who had obtained libel judgments in more claimant-friendly jurisdictions, such as England and Wales, from enforcing them in the state.

The proposed legislation, introduced by Senate Deputy Majority Leader Dean Skelos and Assemblyman Rory Lancman, would amend New York’s Code of Civil Practice to prohibit enforcement of a foreign libel judgment – unless a New York court determines that it satisfies the free speech and press protections guaranteed by the United States and New York State constitutions.

The legislation has been put forward in response to a recent ruling by the New York Court of Appeals that it lacked jurisdiction to declare unenforceable an English High Court libel judgment against US author Rachel Ehrenfeld, as the claimant in that action was neither domiciled in the state nor had he conducted any business there. The proposed legislation would allow New York courts to exercise personal jurisdiction over non-residents who obtain foreign libel judgments against New York residents in order to grant the type of declaratory relief that Ehrenfeld sought.

Ehrenfeld’s English High Court case concerned allegations made in her book Funding Evil that Sheikh Khalid bin Mahfouz and his family contributed millions of dollars to al-Qaeda, deposited tens of millions of dollars into accounts held by terrorists implicated in US embassy bombings, and sponsored Hamas and Hezbollah terrorism. Although the book was not published (in the lay sense) in the UK, a full chapter could be viewed on the popular ABC News website and 23 copies were sold to English residents via internet stores.

Mahfouz and his sons brought libel proceedings over the English publications. Ehrenfeld and her publishers, after initially instructing UK solicitors and suggesting publicly that she would justify her allegations, did not respond to the claim once issued and Mahfouz and his sons were each awarded £10,000 in damages under the summary disposal procedure, along with a declaration of falsity and an injunction. Although Mahfouz had not attempted to enforce the judgment in the US, Ehrenfeld nevertheless applied for the declaration that he would not be able to do so, but was unsuccessful.

The Association of American Publishers welcomed the proposed legislation, saying that the Ehrenfeld case had highlighted the “need for clearer statutory authority to safeguard free speech rights threatened by libel tourism.”

There is likely to be a strong division of opinion amongst independent observers. Some will view the proposed legislation as a necessary safeguard for freedom of expression; others will regard the High Court’s approach as striking an acceptable balance, namely that those who publish serious defamatory allegations in publications disseminated internationally deserve protection in this jurisdiction provided they demonstrate either the truth of their statements or that publication was in the public interest and met the standards of responsible journalism.